FILED United States Court of Appeals Tenth Circuit February 11, 2013 PUBLISH Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS TENTH CIRCUIT MICHAEL LEE WILSON, Petitioner - Appellant, v. No. 11-5031 ANITA TRAMMELL, Interim Warden, Oklahoma State Penitentiary,* Respondent - Appellee. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA (D.C. NO. 4:00-CV-147-CVE-FHM) Dustin B. Rawlin, Tucker Ellis & West LLP, Cleveland, Ohio, (John Q. Lewis, Tucker Ellis & West LLP, and Lanita Henricksen, Henricksen & Henricksen Lawyers, Inc., Oklahoma City, Oklahoma, with him on the briefs), for Petitioner - Appellant. Jennifer B. Miller, Assistant Attorney General, (E. Scott Pruitt, Attorney General, with her on the brief) Oklahoma City, Oklahoma, for Respondent - Appellee. Before HARTZ, TYMKOVICH, and GORSUCH, Circuit Judges. HARTZ, Circuit Judge. *In accordance with Fed. R. App. P. 43(c)(2), Anita Trammell, who was appointed Interim Warden of Oklahoma State Penitentiary on September 24, 2012, is automatically substituted for Randall G. Workman as Respondent in this case. Defendant Micheal Lee Wilson1 was convicted of first-degree murder and robbery with a dangerous weapon in Oklahoma state court and sentenced to death. On direct appeal the Oklahoma Court of Criminal Appeals (OCCA) ordered dismissal of his robbery conviction but affirmed his murder conviction and death sentence. See Wilson v. State, 983 P.2d 448, 463, 473 (Okla. Crim. App. 1998) (Wilson I). Defendant sought a writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the Northern District of Oklahoma, but the district court denied his application. See Wilson v. Sirmons, No. 00-CV- 147CVEFHM, 2006 WL 2289777 (N.D. Okla. Aug. 8, 2006) (Wilson II). We affirmed in part, but vacated and remanded for an evidentiary hearing on Defendant’s claims that he received ineffective assistance of counsel at the sentencing phase of his trial. See Wilson v. Sirmons, 536 F.3d 1064 (10th Cir. 2008) (Wilson III), reinstated sub nom., Wilson v. Workman, 577 F.3d 1284 (10th Cir. 2009) (Wilson IV) (en banc). After holding the evidentiary hearing, the district court ruled that Defendant had failed to establish that his trial counsel had performed deficiently or that counsel’s alleged failures had affected the outcome of the penalty phase, and it again denied the writ. See Wilson v. Workman, No. 00-CV-0147-CVE-FHM, 2011 WL 744661 (N.D. Okla. Feb. 23, 2011) (Wilson V). 1 Although he has been referred to as “Michael Lee Wilson” throughout this case, we are informed and the record reflects that the correct spelling of Mr. Wilson’s first name is “Micheal.” -2- The district court granted Defendant a certificate of appealability (COA) on his ineffective-assistance-of-counsel claim, and Defendant appealed. See 28 U.S.C. § 2253(c)(1)(A) (requiring a COA to appeal the denial of a § 2254 application). We affirm the denial of Defendant’s habeas application. In light of the evidence presented at the hearing before the district court, he has not shown that he was prejudiced by the alleged deficiencies in his counsel’s performance at trial.2 I. BACKGROUND A. The Murder In 1995 Defendant worked at a QuikTrip convenience store in Tulsa, Oklahoma. He, along with accomplices Billy Alverson, Darwin Brown, and Richard Harjo, planned to rob the store. In the early morning hours of February 26, 1995 (two days before Defendant’s 20th birthday), the four men entered the QuikTrip, loitering for about an hour while Defendant conversed with the victim, Richard Yost, the employee on duty. In one chilling exchange, Defendant, just 14 minutes before the assault began, asked Yost how long he planned to work at QuikTrip. When Yost answered that he hoped to become store manager someday, Defendant responded “For real?” R., Vol. 3 Tr. Feb. 20, 1997, at 29–30. The conversation and other events in the store were captured on the 2 We thank counsel for both Defendant and the State for their skillful advocacy in this appeal. -3- store’s surveillance-camera recording, obtained by law-enforcement officers from Alverson’s home. While Yost was cleaning the store’s coolers, the four men attacked him and dragged him into a back room. Alverson and Harjo briefly left the store while Yost screamed for help. The two men returned with a black aluminum baseball bat and went to the back room, where the robbers beat Yost to death with the bat. Yost was handcuffed during the beating: a piece of handcuff later recovered from his skull indicated that he was conscious and attempting to ward off blows for at least part of the fatal attack. During the beating Defendant left the back room, donned a QuikTrip jacket, and began attempting to remove the store’s safe from its position under the counter. As customers entered the store, Defendant greeted them, rang up their transactions, and wished them a good day. After dislodging the safe, Defendant and his three accomplices fled the store with the safe, the contents of the cash drawer, and the surveillance video. Yost’s body, lying in a pool of blood, milk, and beer, was discovered by a customer within a few hours. All four culprits were arrested later that day. Under police interrogation Defendant confessed to participating in the crime. He stated that the robbery and Yost’s killing had been planned for two weeks. Corroborating this admission was evidence that the body alarm typically worn by QuikTrip employees on overnight shifts had been found missing from the store the week before the murder. The -4- safe, the surveillance tape, and several other items from the QuikTrip were recovered from Alverson’s home. B. The Penalty Phase at Trial Evidence was presented during the guilt phase of Defendant’s trial on February 11, 12, and 13, 1997. He did not present any evidence other than the tape-recorded statement of codefendant Brown. Given the irrefutable evidence of guilt, the penalty phase, which began on February 18, was the true contest. 1. The State’s Case The State alleged three aggravating factors to justify the death penalty: (1) that the murder was committed for the purpose of avoiding or preventing arrest or prosecution, (2) that the murder was especially heinous, atrocious, or cruel, and (3) that Defendant was a continuing threat to society because of the probability that he would commit future crimes of violence. See Okla. Stat. tit. 21, § 701.12 (2011). The first aggravator—murder to avoid arrest or prosecution—was obvious from the evidence at the guilt stage of trial. For the other aggravators, the State offered additional evidence. To support the second aggravator, a forensic pathologist testified that in his opinion Yost would have suffered during the attack unless he had been rendered immediately unconscious, and he described Yost’s injuries, including wounds to Yost’s hand and scalp, that indicated his efforts to defend himself. See Willingham v. State, 947 P.2d 1074, 1084 (Okla. Crim. App. 1997) (For a jury to -5- find that the murder was heinous, atrocious, or cruel, “the State must prove conscious serious physical abuse or torture prior to death.”). To prove the continuing-threat aggravator, the State called police witnesses who testified about two recent offenses. First, Defendant had been convicted as an accessory after the fact to the murder of a woman in September 1994 (five months before the Yost murder). The conviction was based on his taking possession of a gun at the principal’s request, although, as noted by the OCCA, “the facts revealed that he may have been more involved in this drive-by shooting by providing ammunition for the gun on the day of the murder.” Wilson I, 983 P.2d at 466. Second, 10 days before Yost’s murder, police had seized a loaded revolver from Defendant’s car during a traffic stop. Codefendant Brown was also in the car. On cross-examination Defendant’s counsel pointed out that Brown was the one charged with possession of the gun and suggested that Defendant was not aware of the gun’s presence. The State also presented victim-impact statements from Yost’s wife and mother, both of whom testified to how their lives had been tragically affected by Yost’s murder. 2. The Defense Mitigation Case a. The Lay Witnesses In the mitigation case the defense put on five lay witnesses and one expert. Two of Defendant’s former teachers and two fellow church members offered -6- similar testimony: that they had known Defendant as a polite, respectful, well- behaved, and intelligent young man and that the murder for which he had been convicted did not represent “the Mike Wilson [they] knew.” R., Vol. 3 Tr. Feb. 19, 1997, at 11. On cross-examination the prosecutor elicited that three of the witnesses had last seen Defendant between two and five years earlier and that his criminal conduct suggested that his behavior and character might have changed in the interim. The other lay witness was Defendant’s mother, Patricia Taylor. She testified that his father frequently used crack cocaine, was often absent, and was not a positive influence on Defendant’s life; that she had cultivated a loving relationship with Defendant and had attempted to inculcate positive values in him; and that she had visited Defendant in jail almost every week. She also testified that she turned over to police some physical evidence of the murder, including the murder weapon, explaining that she had acted to follow “the rules,” and that she expected that doing so would help her son in the long run. Id. at 99. She further testified that immediately after the murder (but before his apprehension), Defendant had returned home in a disturbed emotional state. He said that a man had been killed in a robbery at the QuikTrip, although he did not know how it happened. They then prayed together about the crime. Ms. Taylor concluded with a plea for her son’s life. -7- b. Dr. Reynolds Defendant’s expert witness was Dr. Allan Eugene Reynolds, a clinical psychologist. On direct examination Dr. Reynolds testified to some aspects of his pretrial preparation, stating that he had reviewed information about Defendant’s background, including his school, medical, and criminal records; that he had interviewed Defendant’s mother; and that he had reviewed statements by lay witnesses. In addition, he had met with Defendant on three occasions at the Tulsa County Jail, and had administered several psychological tests to Defendant: the Slossen Intelligence test; two tests designed to screen for organic brain damage, the Bender Gestalt test and the Memory for Designs test; and two personality tests, the MMPI-2 and the MCMI-III. Defendant also completed a psychosocial questionnaire, and Dr. Reynolds observed and interviewed Defendant in addition to the formal testing. Dr. Reynolds was not asked about a failure in the testing. He had administered the MMPI-2 on February 6, 1997, and sent the responses to be scored by computer. The PhD psychologist who scored the test reported that the test was probably invalid, and Dr. Reynolds informed Defendant’s counsel of the invalidity by February 10, the day before trial testimony commenced. But no retest was administered. Dr. Reynolds testified to the results of the valid tests. He reported Defendant’s IQ as 126, placing him in the “superior” range of intelligence. Id. at -8- 55. He said that there was no indication of organic brain dysfunction but that the personality tests showed that Defendant suffered from a “severe personality disturbance.” Id. at 57. He explained: [T]here were responses and there were scores that indicate that [Defendant] has some very unusual, bizarre types of thinking. That would suggest that at times he’s not or has not periodically been in touch with reality. That he basically does not necessarily function at times in a normal state, but that he has a great deal of emotional pathology. Id. Dr. Reynolds also said that in reviewing the statements of those who knew Defendant and in observing Defendant himself, he found it “remarkable” that no one seemed to have any indication that he would engage in the types of behavior that he did. And then on the other hand, the psychological tests show that he has that propensity to engage in that type of behavior. And so there’s a big conflict in terms of what people observed of him and maybe what was going on inside of him. Id. at 58. When asked if his psychological analysis could explain “the two Michael Wilsons,” Dr. Reynolds spoke of the differences between Defendant’s two parents. Id. at 59. He said: Well, the social history questionnaire indicates that—and his— his past that he grew up in a family where the father left, who was involved in drugs and alcohol, and pretty much was not involved in Michael’s life. The mother was very strong, caring, disciplinarian and tried to keep the family together. Michael was involved in church. And then, I believe one of the persons that he identified with very closely, a Sunday school teacher, died of cancer. From my interviews with -9- him, he indicated to me that this was very distressing and very upsetting to him. There was a lot of gang activity in the neighborhood where he grew up. The mother sent him off to North Carolina for a while with her sister. And Mike did very well out there in a different environment. So on the one hand, here’s a young man who has an uninvolved father, who’s a role model, was involved in drugs and alcohol, and not particularly caring. And on the other hand, you have a highly structured mother, who provides church and this sort of thing. So you have the two pictures of Mike. On the one hand, you have the picture of the Sunday school-going child. On the other hand, you have the picture of the gang and uninvolved father, who did not set a particularly good role model. When he got out of both of those environments and went off to North Carolina, apparently there he did very well. I believe that his sister and his brother-in-law were involved in the Marines, provided a lot of structure for him. So if we look at the environments to which he was exposed to does explain somewhat of the two type of Michael’s [sic] that you have, depending where he was at as to who he identified with. Id. at 59–61. Dr. Reynolds testified about the gang violence to which Defendant had been exposed from a young age. He identified several particularly traumatic experiences: Defendant’s being shot in a drive-by attack when a young adolescent, the torching of his home by rival gang members, and the death of his Sunday-school teacher from cancer. Dr. Reynolds also suggested that Defendant could be rehabilitated because of his superior intelligence. He explained: [Defendant’s high level of intelligence] provides him, I think, with the intelligence to do something with himself, as well as be a -10-